Homicide charge in heroin sale dismissed

JANESVILLE  A Beloit man accused of selling heroin that killed a Milton man is free from charges after Rock County Judge Kenneth Forbeck dismissed a reckless homicide case against him.

Rock County District Attorney David O'Leary said the district attorney's office moved to dismiss the case Wednesday. He said prosecutors lacked enough evidence to prove the heroin that David W. Givhan, 24, of Beloit, was accused of selling to a Milton man March 31, 2009, was the same heroin that caused the man to die from an overdose at work later that day.

Givhan was released from custody Wednesday. He had been held on a cash bond since June 2010, after he was arrested on a charge of first-degree reckless homicide.

Givhan was accused of selling heroin to Luc A. Marsh, 29, of Milton on March 31, 2009, in Beloit. According to witnesses, Marsh bought heroin from Givhan, and he and a group of heroin users shot up with the drug mid-afternoon that day.

According to criminal complaints, Marsh shot up with heroin again that evening before going to work as a janitor at Edgerton Hospital. He was found dead in the maintenance office bathroom at the hospital, according to criminal complaints.

Authorities found a tourniquet, spoon, hypodermic needle and lighter in the bathroom.

O'Leary said the case against Givhan fell apart partly because there were no witnesses to what Marsh did between the time he left the company of other heroin users and when he was found dead at work.

"We could not prove without a reasonable doubt that he did not get additional heroin during that time period or where the heroin he used during that time period came from," O'Leary said.

He noted that Marsh had a history of buying heroin from more than one person.

He said prosecutors also had trouble with the timeline of Marsh's overdose.

Pathologists initially indicated the heroin that Marsh allegedly bought from Givhan and used mid-afternoon on the day he died was a substantial factor in his death.

But as prosecutors were readying witnesses for jury trial Wednesday, state pathologist Dr. Michael Stier told them he would testify it was more likely the heroin that Marsh used before work was the dose that killed him, O'Leary said.

O'Leary said Stier indicated the heroin Marsh purportedly took earlier in the day would likely have metabolized to below fatal levels before Marsh shot up again at work.

O'Leary said it's difficult in such cases to prove who supplied the drugs that actually killed a victim.

In this case, many key witnesses were other heroin users, some who told conflicting versions of what happened the day Marsh died.

One witness had testified earlier he thought the heroin that killed Marsh was the same heroin they bought in Beloit because Marsh did not have money for more drugs. Other witnesses testifying earlier couldn't remember key details about the day Marsh died.

"It became clear that we had conflicting stories. We still had a reasonable belief that the heroin that killed him (Marsh) came from Mr. Givhan. However, we could not prove it beyond a reasonable doubt," said O'Leary.

Givhan faces no other charges tied to Marsh's death, although O'Leary said Givhan is under supervision by the Wisconsin Department of Corrections for another incident.

O'Leary said Marsh's mother understood the court's decision Wednesday, but she was "clearly upset" by the outcome of the case.

He said she expressed disappointment and frustration because she'd been dealing with Marsh's drug problems for years before he died.